October 29, 2014

Written by: Jeremy Cole

From 1993 to 2009, the Department of Veterans Affairs (“VA”) made $943 million in over-payments to veterans, and projections suggest another $1.1 billion in over-payments may be made by 2016. Although some of these payments are undoubtedly made to veterans trying to “cheat” the system, most are made to veterans simply attempting to collect the money to which they are entitled, and to whom the VA has mistakenly overpaid. More importantly, veterans who receive these payments often rely on them and have already spent them by the time the VA realizes its mistake.

The VA generally views over-payments as debts the veteran owes back to the VA. Pursuant to Federal Regulations, the VA is required to notify the veteran of these debts, including what actions the alleged debtor can take to remedy the problem. However, beyond this notice requirement, the VA is not required to take any further action.

But, Congress has specified that the VA is not entitled to recover disability compensation over-payments when they are made based on VA error without any fault on the part of the veteran. In these situations, the VA must “waive,” that is, cancel, the veteran’s alleged debt. However, because the VA is only required to notify the veteran of these debts, the VA will not waive the debt unless the veteran explicitly demands that the VA do so. To request a waiver, the veteran must submit a waiver request, and two forms to the VA: VA Form 21-4138, Statement in Support of Claim, and a Financial Status Report, VA Form 5655. By requiring the veteran to proactively challenge the VA’s debt determination, the VA has essentially created a requirement that the veteran point out to the VA its own mistake and subsequent violation of its own regulations. This roundabout process creates unnecessary hardship and stress for the veteran, who is much less likely to know the technical details of VA procedure, and often does not have the resources to effectively challenge VA decisions. The VA is supposed to aid the veteran in getting his or her benefits. By refusing to follow its own procedures until the veteran points out its failure to do so, the VA is violating its own mission, to the detriment of our veterans.

October 22, 2014

Written By: Chris Yakubisin

The frustrations for a veteran seeking compensation for the complications and disabilities related to their service are many, one in particular has struck me: the inability of the C.F.R. to adequately define disabilities in its ratings schedules.

What I mean is, while the C.F.R.’s ratings schedules attempt to determine what characteristics of a particular disability warrant what disability rating, there are a lot of considerations that are left out, resulting in ratings that don’t accurately reflect the level of disability. The problem really is that the C.F.R. is attempting to do what may be an impossible job.

There is no way to tell exactly how a veteran’s service will affect them for the rest of their lives. Their experiences are varied and certainly more extreme than a typical person’s daily experience, which leads to more complicated health problems when they return. The rating schedules in the C.F.R. simply aren’t worded to account for many of these problems.

For example, the rating schedule for eczema or dermatitis, rated at 60 percent (the highest rating available for these disorders), requires a veteran to have “More than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period.” This may seem like a fair rating schedule, but in practice different results may arise. What if, for example, the veteran in question had used corticosteroids to treat their disorder, but over time the negative health effects of the “near constant” use of steroids outweighed the benefit of their use? If that veteran went to apply for compensation for the disorder, after having decided to discontinue the use of steroids, they may be barred from claiming benefits under this regulation.

Or, what if the veteran was affected by this disorder on a small, but important, part of their body, like their hands? In an extreme case this may prevent that veteran from using their hands as they normally would, and may prevent them from keeping steady employment, yet without a substantial rating it would be difficult or impossible to obtain a rating for total disability based on individual unemployability.

This is just one example of the shortcomings in the rating system as it is today; however, it is difficult to imagine an alternative formulation of the system. Were a more pragmatic system to be developed, with a greater emphasis on the real impact of the disability, it would almost certainly be subject to some controversy. Different diagnoses may be treated more sympathetically than others, some may be easier to prove, or one rater may give higher ratings than another, creating more inequality in the system.

While a large-scale expansion and revision of the ratings schedules would be ideal, it is unlikely that we will see that any time in the near future. In the meantime, the best recourse may simply be effective advocacy. Creative solutions for the obstacles presented by the C.F.R. ratings system may be difficult to formulate, but the possibility of an accurate rating still exists for someone who has the time and resources to prove the true nature of their disability to the VA.

October 4, 2012

Last month we wrote about a case involving a challenge to the practice of including veteran’s disability benefits in spousal support obligation calculations. The case had been appealed all the way up to the Supreme Court after three courts in Oregon had ruled against the challenger, Mr. Barclay. On October 1, 2012, the Supreme Court decided not to decide the issue, denying the petition for the Court to hear the case.

Had Mr. Barclay succeeded at the level of the Supreme Court, the consequences would have rippled throughout the country, since most states use the same or a similar approach to Oregon’s, including Virginia. It looks like for now, however, states may continue including veterans disability benefits in their spousal support calculations.

October 2, 2012

By: Kevin Barrett

The Department of Veteran Affairs (VA) and their specific branch of Veterans Benefits play a very important role in today’s American society. The Veteran Benefits branch of the VA is responsible for screening and evaluating applications from United States Veterans for disability compensation and pension. Veterans typically apply to the VA for disability benefits if they are injured upon leaving the armed services and have not been retired on a medical status. The VA has provided this opportunity for those well deserving men and women to receive the benefits they need after serving their country for a period of time. However, there is another option for a group of Veterans who believe that they should have been medically retired from the armed services but were improperly evaluated during their Physical Evaluation Board or Medical Evaluation Board process.

The Physical Disabilities Board of Review (PDBR) was created by Congress as part of the Dignified Treatment of Wounded Warriors Act of 2008. President Bush signed this Act into law on January 28, 2008. The Act was geared towards Veterans who have been medically separated from the U.S. Military between September 11, 2001 and December 31, 2009. This legislation gives these Veterans the opportunity to have their disability ratings reviewed by a specially created Board to ensure fairness and accuracy. Congress feared that during this particular time period, Veterans were receiving inaccurate evaluations of their medical status and this Board, along with this process, is their way of attempting to correct any injustice. Combined disability ratings of 20% or less are eligible to be reviewed by the PDBR. This is because, to be eligible for medical retirement from the armed forces, a rating of 30% or higher is needed. Any improper evaluations during that time period could very well have resulted in a rating of 20% or less; therefore, those are the eligible Veterans for re-evaluation through this process.

The Department of Defense designated the Air Force as the lead component to establish and operate the PDBR and they are responsible for reviewing cases from all of the services. Representatives from three separate services, including the service of the applicant, jointly review each case. The process for the PDBR begins with a veteran separated between 9/11/01 and 12/31/09 with 0%, 10%, or 20% combined disability. These eligible Veterans submit a signed DD-294 to PDBR Central Intake Unit (CITU) to begin application process. CITU then requests medical and disability evaluation documentation from the VA and the Veteran’s Military Department. Once these documents are received, they are uploaded into the PDBR central database where the PDBR downloads the case documentation at Joint Central Adjudication Unit (JCAU). The PDBR will then review the case, adjudicate any issues within the case & recommend action to the Designated Decision Authority (DDA). The DDA of Veteran’s Military Department will ultimately make the final decision on each case and inform the Veteran. If the veteran’s prior disability separation is re-characterized as a disability retirement, the DDA coordinates correction of the veteran’s military record as well as pay with DFAS and the VA. However, if the veteran’s disability is not re-characterized, there will be no change in status (with the VA or the individual’s Military Department). By law, the PDBR may not recommend a lower disability rating for any rating reviewed. In accordance with Title 10 United States Code, Section 1554a, Veterans who sign their application to the Physical Disability Board of Review (PDBR) acknowledge their understanding that they can no longer appeal to their Service Board for Correction of Military Records for the same conditions that the Physical Disability Board of Review adjudicated. Therefore, their PDBR determination is not appealable. However, the Veteran retains the right to file a lawsuit with the U.S. Court of Federal Appeals. Additionally, Veterans have the right to appeal the medical conditions not adjudicated by the PDBR to the Board of Correction of Military or Naval Records.

For some Veterans this is the second chance they prayed for; a chance to have a wrong corrected and to be properly evaluated for their medical disability. Thus far, the PDBR has been very beneficial to Veterans since they started reviewing cases back in 2009. Presently, more than 50% of cases reviewed by the PDBR have been upgraded; resulting in disability retirement for well deserving Veterans.